Human Rights Tribunal of Ontario
Between:
Ahisha Fraser on behalf of Paramdai Shakir Applicant
-and-
Kidron Valley Rehab Inc. and Marco Sorrento Respondents
Interim Decision
Adjudicator: Michelle Flaherty Date: September 8, 2010 Citation: 2010 HRTO 1836 Indexed as: Shakir v. Kidron Valley Rehab
Written Submissions By:
Marco Sorrento, Respondent: Jean-Claude Killey
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), in which she alleges discrimination on the basis of sex in the provision of goods, services or facilities.
2In essence, the applicant states that she received massage services from the individual respondent while he was employed by the corporate respondent. She states that after the individual respondent ceased to be employed by the corporate respondent, he provided massage services to her in her home. Among other things, she says that during these home visits, the individual respondent made sexual advances and touched her inappropriately.
3The individual respondent has filed a Response in which he denies the allegations of discrimination and seeks the deferral of the Application pending the outcome of a complaint filed by the applicant with the College of Massage Therapists of Ontario ("College").
4The corporate respondent filed a Response in which it asks that the Application be dismissed because another proceeding (the complaint with the College) has in whole or in part dealt with the substance of the Application. In the alternative, this respondent seeks a deferral of the Application pending the determination of the complaint by the College. Finally, this respondent states that it has no knowledge of or involvement in the incidents giving rise to the Application and asks that the Application be dismissed against it.
5In its Response, the corporate respondent has identified the College as an affected party. The applicant has filed a Reply, but has not addressed the requests for dismissal, the deferral, or the RFOP.
6In an earlier Interim Decision, 2010 HRTO 1310, the Tribunal sought submissions from the parties and the College regarding the following issues:
a. What is the status of the complaint filed with the College?
b. If the College's complaint process has reached its conclusion, has the College's determination appropriately dealt with the substance of the Application?
c. If the complaint is ongoing before the College, should the Tribunal defer the Application pending the outcome of the College's complaint process?
7The individual respondent has filed written submissions in response to the Interim Decision. No submissions were received from the applicant, the corporate respondent or the College.
Request to defer
8The individual respondent states that the matter before the College has reached its conclusion and that the time period for appealing the decision has elapsed.
9As there is no ongoing litigation, I find that there is no basis to defer the Application pursuant to Rule 14.1.
Request to dismiss
9Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.
10For section 45.1 to apply, the corporate respondent must demonstrate that the complaint before the College involves a proceeding within the meaning of the Code and that the College matter has reached its conclusion and has "appropriately dealt with" the substance of the Application.
11Based on the materials, I find that the matter before the College has reached its conclusion.
12The corporate respondent submits that the matter before the College was a proceeding which appropriately dealt with the substance of the Application. In this regard, the corporate respondent relies on the Tribunal's decision in Christianson v. College of Physicians and Surgeons of Ontario, 2010 HRTO 72, where the Tribunal dismissed an application, finding that the applicant had had a meaningful opportunity to be heard by the College of Physicians and Surgeons in relation to the issues raised in the Application.
13The corporate respondent has raised a serious issue regarding the application of section 45.1 to the facts of this case. However, section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions.
14In the circumstances, pursuant to section 43(2), the applicant may make oral submissions regarding the respondents' request that the Application be dismissed. If the applicant wishes to make submissions on the dismissal issue, she must either:
a. within twenty days of the date of this Interim Decision, advise the Tribunal, the respondents and the College in writing of her desire to make oral submissions. If the applicant selects this option, the Registrar will schedule an oral hearing by way of a telephone conference call; or
b. within twenty days of this Interim Decision, provide the respondents and the College and file with the Tribunal written submissions regarding the dismissal issue.
15If the applicant does not advise the Tribunal, the respondents and the College of her desire to make further submissions according to paragraph 6, the Tribunal may determine the dismissal issue based on the materials already filed or may consider the failure to respond as an abandonment of the Application and dismiss it on that basis.
16I am not seized of this matter.
Dated at Toronto, this 8th day of September, 2010.
"siged by"__________________
Michelle Flaherty Vice-chair